United States District Court, D. Colorado
ORDER
RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE
This
matter is before the Court on the February 28, 2019, Report
and Recommendation of Magistrate Judge N. Reid Neureiter (ECF
No. 41) to grant Defendants' Motion to Dismiss (ECF No.
16) and to deny Plaintiff's request, embedded in his
response to the motion to dismiss, to amend the complaint if
necessary. Plaintiff has filed objections to the
recommendation (ECF No. 45) and a supplement to his complaint
(ECF No. 40), which the Court construes as a motion to amend
the complaint. Defendants have filed a motion to strike the
supplement. (ECF No. 44.) The recommendation is incorporated
herein by reference. See 28 U.S.C. §
636(b)(1)(B); Fed.R.Civ.P. 72(b). As explained below, the
Court overrules Plaintiff's objections, accepts and
adopts the recommendation, grants Defendants' motion to
dismiss, and denies Plaintiff's motion to amend the
complaint.
I.
LEGAL STANDARDS
This
Court reviews de novo any part of the magistrate judge's
recommendation that is properly objected to. Fed.R.Civ.P.
72(b)(3). An objection is proper only if it is sufficiently
specific “to focus the district court's attention
on the factual and legal issues that are truly in
dispute.” United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). “In
the absence of timely objection, the district court may
review a magistrate's report under any standard it deems
appropriate.” Summers v. State of Utah, 927
F.2d 1165, 1167 (10th Cir. 1991).
In
evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
court must accept as true all well-pleaded factual
allegations in the complaint, view those allegations in the
light most favorable to the plaintiff, and draw all
reasonable inferences in the plaintiff's favor.
Brokers' Choice of Am., Inc. v. NBC Universal,
Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v.
Knox, 613 F.3d 995, 1000 (10th Cir. 2010). However,
conclusory allegations are insufficient. Cory v. Allstate
Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). The
complaint must allege a “plausible” right to
relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
569 n.14 (2007); see also Id. at 555 (“Factual
allegations must be enough to raise a right to relief above
the speculative level.”). To determine whether a claim
is plausible, a court considers “the elements of the
particular cause of action, keeping in mind that the Rule
12(b)(6) standard doesn't require a plaintiff to set
forth a prima facie case for each element.” George
v. Urban Settlement Servs., 833 F.3d 1242, 1247 (10th
Cir. 2016) (quotation omitted).
A court
should allow a party to amend its complaint “when
justice so requires.” Fed.R.Civ.P. 15(a)(2). However, a
court may deny leave to amend where amendment would be
futile. Bradley v. Val-Mejias, 379 F.3d 892, 901
(10th Cir. 2004). “A proposed amendment is futile if
the complaint, as amended, would be subject to
dismissal.” Id. (quotation omitted).
Finally,
the Court is mindful that Plaintiff proceeds pro se;
therefore, the Court reviews his pleadings liberally and
holds them to a less stringent standard than those drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520
(1972); Trackwell v. United States Gov't, 472
F.3d 1242, 1243 (10th Cir. 2007).
II.
BACKGROUND
These
background facts are taken from Plaintiff's complaint and
separately filed supplement and, for purposes of this order,
are stated in the light most favorable to him. Plaintiff is
an inmate at the Sterling Correctional Facility who, at the
times relevant to this case, worked at the Colorado
Correctional Industries Seating Factory. As an inmate and a
factory employee, Plaintiff was subjected to occasional strip
searches. Plaintiff finds strip searches particularly
embarrassing and invasive because he has a condition known as
gynecomastia, which causes him to have “breasts [that]
are deformed and appear feminine.” (ECF No. 1 at 6,
¶ 13.) According to the complaint, undergoing seventeen
strip searches in two years put Plaintiff “at risk of
being targeted by other inmates after they saw his naked body
and the appearance of female breasts.” (Id. at
¶¶ 15, 17.)
On
January 24, 2017, Defendant Rittenhouse instructed Plaintiff
to “strip out” after completing his shift at the
seating factory. (Id. at 7, ¶ 19.) At that
time, the booths in the common area used for strip outs
“provided no real privacy due to the height of the
walls [and] the depth of the walls[, ] and no screens or
privacy barriers were provided.” (Id. at
¶ 24.) Plaintiff entered a booth, removed his clothing,
and, at Defendant Enslow's direction, performed a routine
series of a movements that included separating his penis from
his scrotum, lifting his scrotum, bending over, and spreading
his buttocks. (Id. at 7-8, ¶¶ 26, 28.)
Plaintiff then “was forced to get dressed in front of
other inmates” before leaving the strip out area.
(Id. at 8, ¶ 31.) One inmate was less than a
foot away, another was four and a half feet away, and a third
was washing his hands at a nearby sink, in clear view of
Plaintiff. (Id. at ¶ 32.) The incident prompted
Plaintiff to file a grievance on February 13, 2017, because
he believed applicable administrative regulations were not
being followed. A short while later, the strip out booths
were rebuilt.
On
April 17, 2017, a curtain was installed on one of the four
new booths, and Plaintiff was again instructed to strip out
after his shift. Defendant Quinn instructed Plaintiff to use
the booth with a curtain, stating “You get the cubicle
with the curtain[.] Just for you.” (Id. at 11,
¶ 56.) Defendant Quinn directed Plaintiff to perform the
same series of movements. (Id. at ¶¶
58-61.) Immediately after giving the final instruction,
Defendant Quinn stepped back to allow another inmate to walk
past between him and Plaintiff, who was still naked.
(Id. at 12, ¶ 62.) In reaction to seeing
Plaintiff's naked body, the inmate “raised his
hands [to block his view of Plaintiff] and said
‘WHOA-WHOA-WHOA' as he was leaving the strip out
area.” (Id. at ¶ 65.)
Employees
of the seating factory received regular evaluations based on
their attitude and performance on which their continued
employment depended. (ECF No. 40 at 2-3, ¶¶ 9-11.)
After Plaintiff began formally complaining about the strip
searches, he stopped receiving his monthly evaluations.
(Id. at 3, ¶ 12.) Nevertheless, he continued
working at the seating factory. Then in January 2019, he
received his old evaluations and saw that he had received
lower scores after complaining about the strip searches than
he had in the previous six years. (Id. at ¶
13.) Plaintiff alleges that Defendant Enslow, his floor boss,
was responsible for filling out the evaluations.
(Id. at ¶¶ 16, 17.) He also alleges that
Defendant Quinn lowered his scores when he printed them due
to information he received from Defendant Enslow.
(Id. at 5, ¶¶ 35, 43.)
III.
ANALYSIS
Plaintiff's
complaint contains five claims. The first four are brought
under 42 U.S.C. § 1983 for alleged violations of his
Fourth Amendment rights by Defendants Enslow, Quinn,
Rittenhouse, and Cunningham, respectively. The fifth claim is
a § 1983 claim for an alleged violation of his First
Amendment rights by Defendant Quinn. In his subsequently
filed supplement, Plaintiff ...